Has the Supreme Court Finally Found Its Way or Will the Mania Continue?

Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam ("Prejudicial Error," "The Last Appeal" and "The Face of Justice") and is a…

Has the Supreme Court suddenly found the middle of the road on civil liberties as it heads down the home stretch of the current term? That’s the big question in the aftermath of two high-profile decisions released this week. The first, Hall v. Florida, reverses the death sentence imposed on a 68-year-old mentally disabled man. The second, Wood v. Moss, dismisses a lawsuit that had been brought by anti-Bush demonstrators against Secret Service agents on technical grounds, while recognizing the fundamental right to protest.

Taken together, the decisions could be interpreted to mean that the court isn’t really the extreme right-wing juggernaut some observers, including me, have made it out to be. Or they could be interpreted to mean something quite different — that with an occasional detour, whimper and exception, the court remains committed to a judicial counterrevolution that began in 2000 with Bush v. Gore, handing the presidency to the Republicans; continued in 2008 with District of Columbia v. Heller, establishing an individual right to gun ownership under the Second Amendment; and accelerated in 2010 and earlier this session with the Citizens United and McCutcheon decisions, expanding the fiction of corporate personhood and overturning decades of carefully crafted campaign finance law.

Before answering the question for yourself, consider the specifics of the latest opinions.

Hall v. Florida

Freddie Lee Hall was convicted of murdering a pregnant housewife and a deputy sheriff in 1978, both gruesome acts for which he was sentenced to death. In 1992, however, at one of Hall’s many post-conviction hearings, a Florida trial judge found that Hall had been “mentally retarded all his life.” Still, the judge upheld Hall’s sentence.

Twenty years later, in 2012, after an unusually lengthy series of appeals and writs, the Florida Supreme Court also upheld Hall’s death judgment even though, as a dissenting member of the court noted, Hall had an IQ that measured as low as 60 and suffered from organic brain damage and chronic psychosis as well as having the short-term memory of a first-grader. He also endured a speech impediment and learning difficulties. Among other forms of abuse and torture suffered at the hands of his mother, other relatives and neighbors, Hall was tied up in a burlap sack as a youngster and swung over an open fire, suspended by his hands from a ceiling beam, beaten while naked, made to lie still for hours underneath a bed and repeatedly deprived of food.

The Florida Supreme Court deemed Hall mentally fit for lethal injection, as during the course of his protracted incarceration he had registered scores of 80, 73 and 71 on Wechsler WAIS IQ tests administered at the direction of prison authorities. Under Florida law, any death row inmate scoring above 70 cannot be considered disabled.

In taking up Hall’s case, the Supreme Court agreed to decide whether Florida’s IQ test for defining mental disability ran afoul of the tribunal’s 2002 holding in Atkins v. Virginia. Writing for a 6-3 majority, then-Justice John Paul Stevens ruled in Atkins that evolving standards of decency and an emerging national consensus precluded the execution of inmates deemed “mentally retarded,” the term then widely used before it was cleaned up, sanitized and replaced with the label “disabled” by mental health organizations.

Stevens also reasoned that executing the mentally disabled would do little to advance two of the primary justifications for capital punishment — retribution for and deterrence of capital crimes — as severe mental deficits operated to diminish a defendant’s culpability and made it less likely that disabled defendants would understand and appreciate the possibility of execution as a penalty and, as a result, control their conduct based upon that understanding.

On a practical level, the court in Atkins elaborated that a finding of mental disability required proof of three conditions: (1) sub-average intelligence, most commonly measured by IQ tests, (2) lack of fundamental adaptive social and practical life skills, and (3) the onset of such deficiencies before the age of 18. But — and this is where Freddie Lee Hall re-entered the constitutional picture — the court left it up to the states to implement specific definitions of mental disability.

Florida was one of 10 states in the post-Atkins era (the others are Arkansas, Delaware, Idaho, Kentucky, Maryland, North Carolina, Tennessee, Virginia and Washington) that used IQ scores of 70 or below as a bright line cutoff for establishing disability. The remaining states authorizing capital punishment generally embraced the approach of the American Psychiatric Association, which instructs that disability should be assessed not only with a range of standardized tests that take into consideration what examiners call standard errors of measurement to account for the imprecision of test results, but with clinical evaluations of everyday behavior such as language usage, social judgment and personal care.Applying the logic of Atkins, the Supreme Court this week declared Florida’s bright-line test unconstitutional. “Intellectual disability is a condition, not a number,” Justice Anthony Kennedy wrote for the tribunal’s majority. Rather, in keeping with the APA’s teachings, a diagnosis of mental disability depends not only on significant sub-average test scores but also on significant clinical deficits in adaptive behavior.

As welcome as the court’s decision is for opponents of capital punishment and especially for Hall, who will now be given a fresh sentencing review, a close reading of the ruling reveals a darker side as the 6-3 majority of Atkins dwindled in Hall’s case to a razor thin 5-4. Although the state of Florida failed to cite a “single medical professional” who supported its strict IQ cutoff, nearly half the justices — as expressed by Samuel Alito’s regressive dissent and joined by John Roberts, Antonin Scalia and Clarence Thomas — were willing to disregard advances in modern medicine to endorse Hall’s execution.

Hall’s victory, while chipping away at the edges of capital punishment, will do little to end the punishment itself. No sitting member of the current court has ever conveyed the view that the death penalty in all instances is unconstitutional, as the late progressive Justices William Brennan and Thurgood Marshall time and again argued. Hall’s case marks yet another missed opportunity for anyone now on the bench to screw up the courage and do so.

Wood v. Moss

In October 2004, Michael Moss, a former organic farmer and a proponent of sustainable agriculture, and a group of some 200 to 300 other activists obtained a permit to stage a protest as then-President George W. Bush’s motorcade passed through the tiny hamlet of Jacksonville, Ore., a month before the November election. When the motorcade unexpectedly stopped at a local restaurant and Bush and wife Laura alighted for a lunch al fresco on the bistro’s patio, Moss and his cohorts gathered on an adjacent street corner to continue their demonstration while a group of Bush supporters took up a position on the opposite corner.

By all accounts, the restaurant was crowded with diners who had not been searched or prescreened to ensure the president’s safety. And by all accounts, Moss and his cohort, while boisterous, were peaceful and unarmed. Nonetheless, 15 minutes into the protest, Secret Service agents Tim Wood and Ron Savage, acting in accordance with an official White House manual on crowd control, ordered local police to forcibly remove the anti-Bush demonstrators from their corner while allowing the pro-Bush contingent to remain in place.

The Oregon ACLU filed a federal lawsuit, alleging that the agents had violated Moss’ free speech rights and engaged in constitutional viewpoint discrimination by displacing only those opposed to the president’s policies from the immediate protest scene. After years of vigorously contested litigation, the 9th U.S. Circuit Court of Appeals decided that Moss had pleaded sufficient facts to take his case before a jury, finding specifically that if his allegations were proven at trial, Moss could overcome the qualified immunity that traditionally shields the Secret Service from civil lawsuits.

From the moment the Supreme Court agreed to hear the appeal in the case, it was clear the tribunal was going to reverse the 9th Circuit. Just two years ago, the high court dismissed a lawsuit pursuant to the qualified immunity defense in the case of Reichle v. Howards, involving an arrest made by a Secret Service agent during a visit by Vice President Dick Cheney to a Colorado shopping mall.

As might be expected, the majority ruling in Reichle was written by Thomas. Justice Elena Kagan recused herself from participation in the case due to her previous role as the nation’s solicitor general. Justice Ruth Bader Ginsburg, often considered the court’s most liberal member, authored a concurrence, joined by Justice Stephen Breyer, declaring that she would have allowed the case to proceed to trial had the arrest been made by an ordinary law enforcement officer rather than the Secret Service.

Michael Moss didn’t even get that far. In a unanimous 9-0 ruling recognizing that the state cannot discriminate between anti- and pro-government speakers, the court nonetheless tossed Moss’ suit, accepting and embracing the Justice Department’s unproven claims that only the anti-Bush protesters “were within weapons range” of the president and therefore had to be moved. In so holding, according to Florida International University law professor Howard Wasserman, the justices not only rendered an awful decision, but left no “obvious room for [future] protesters to ever challenge Secret Service decisions regarding crowd control.”

Perhaps the most shocking aspect of the Moss decision, and the ultimate barometer on how far the entire institution — and not just its conservative core — has shifted over the past decade and a half, is that the unanimous opinion was penned by none other than Ginsburg, whose ruling may well be the last word we’re going to receive at least in the short run on the subject of street demonstrations against presidential policies and power.

So, has the Supreme Court suddenly found the middle of the road on civil liberties as we near the end of another term? We can answer yes only if we understand that the road itself has veered dramatically to the right.